NOT DESIGNATED FOR PUBILCATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2008 CA 1018 AND 2008 CW 0174
AARON R CATHCART AND BETTY LEBOEUF CATHCART
VERSUS
DAVID MORACE AND PAULA MORACE RONALD PATTEN AND JOYCEPATTEN ELWOOD ALBERTS JR CYNTHIA ALBERTS JOHN MARKOW
AND PATRICIA MARKOW PATRICIA HOPPE KEITH MORGAN AND
THERESA MORGAN DEBRA BROOKS ROBIN JOUBERT SALLY ANSELFRANKIE ALLEN KENNETH BYRD JR
Judgment Rendered MAY 1 3 2009
Appealed from the
Twenty Second Judicial District Court
In and for the Parish of WashingtonState of Louisiana
Suit Number 94 605
Honorable Peter Garcia Presiding
Michael D ConroyStephen K ConroyTom Snyder Jr
Rebecca E Fenton
Metairie LA
Counsel for Plaintiffs AppelleesAaron R Cathcart and Betty Cathcart
William J Crain
Covington LACounsel for Defendants AppellantsDavid Morace Paula Morace RonaldPatten Joyce Patten Elwood AlbertsJr Cynthia Alberts John MarkowPatricia Markow Patricia HoppeKeith Morgan Teresa Morgan Debra
Brooks Robin Joubert Sally AnselFrankie Allen and Kenneth Byrd Jr
c S lARRO KUHN GUIDRY AND GAIDRY JJ
j1ClVCiIJ c
ffJ6 GIHJiIr ti sHj J M fZ 4 s
GUIDRY J
Defendants David Morace Paula Morace Ronald Patten Joyce Patten
Elwood Alberts Jr Cynthia Alberts John Markow Patricia Markow Patricia
Hoppe Keith Morgan Teresa Morgan Debra Brooks Robin Joubert Sally Ansel
Frankie Allen and Kenneth Byrd Jr appeal from the trial court s judgment
granting summary judgment in favor of plaintiffs Aaron and Betty Cathcart For
the reasons that follow we reverse and remand
FACTS AND PROCEDURAL HISTORY
On May 28 1999 Circle T Limited Circle T purchased 41193 acres from
Green Land Limited Partnership Thereafter Circle T sold a portion of its
property consisting of 20 648 acres to James and Cathy Magee Magees On
August 11 2000 Circle T and the Magees executed an instrument entitled
Restrictive Covenants for MaKinley Cove and Adjacent Property Parcels Situated
in Headright 40 and Section 28 Township 1 South Range 10 East Washington
Parish Louisiana This document was filed in the conveyance records in
Washington Parish on August 14 2000
On October 10 2000 Circle T sold a portion of its property consisting of
5 32 acres to Aaron and Betty Cathcart Cathcarts A fifty foot right of way
running from Highway 25 on the eastern side of the original 411 93 acre tract to
the Bogue Chitto River on the west crosses the Cathcarts 5 32 acre tract
On September 29 2006 the Cathcarts filed a petition naming sixteen
property owners as defendants The Cathcarts asserted that beginning October 15
2004 Circle T sold parcels of its property to these defendants and the related acts
of sale omitted Article 5 of the restrictive covenants Article 5 provides that
parcels adjacent to the lake and the lake are designated for private use owners and
family no guest is allowed unless accompanied by an owner whether on the lake
hunting or on the premises and that any individual not accompanied is a
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trespasser subject to penalties The Cathcarts asserted that the absence of this
article from the restrictive covenants would give unrestricted access to the
Cathcarts property through the servitude and would create an unreasonable
nuisance and danger to the Cathcarts Accordingly the Cathcarts sought a
declaratory judgment finding that the properties owned by the defendants are
burdened by the restrictive covenants established by Circle T and the Magees in
the August 11 2000 document and sought issuance of a preliminary injunction
later to be made permanent enjoining the defendants from violating the restrictive
covenants
On May 7 2007 the defendants filed a motion for summary judgment
asserting that the restrictive covenants only apply to property that is in and adjacent
to the lake known as MaKinley Cove Lake Because none of the defendants
properties are in and adjacent to the lake they urged that summary judgment
should be granted and the Cathcarts suit should be dismissed Thereafter on May
30 2007 the Cathcarts filed an opposition to the defendants motion for summary
judgment and also filed a cross motion for summary judgment asserting that the
restrictive covenants as written are not ambiguous and apply to the entirety of the
property owned by Circle T and the Magees when the covenants were executed
and recorded Therefore according to the Cathcarts the restrictions are binding on
the defendants who subsequently acquired the property burdened with the
restrictions Alternatively the Cathcarts asserted that if any ambiguity exists
extrinsic evidence may be used to determine the intent of the parties and intent is a
question of fact the determination of which is not appropriately decided on a
motion for summary judgment
Following a hearing on both motions for summary judgment the trial court
rendered judgment denying defendants motion for summary judgment
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Additionally the trial court granted the Cathcarts motion for summary judgment
finding
T he entire 411 93 acres designated as Makinley Cove and theindividual parcels therein are to receive the benefits of and are
burdened with each and every of the Restrictive Covenants for
Makinley Cove and Adjacent Property Parcels Situated in Headright40 and Section 28 Township 1 South Range 10 East WashingtonParish Louisiana as filed and recorded at Conveyance Book 510
folio 429 Instrument No 220674 and at Map 3 Entry 37 on August14 2000 located in the Office of Conveyances Washington Parish
After finding no just reason for delay the trial court ordered that the judgment be
deemed final as to all issues addressed therein as provided by La C C P art
1915 B 1
The defendants filed an appeal from the portion of the judgment granting the
Cathcarts motion for summary judgment and filed an application for supervisory
writs as to the portion of the judgment denying their motion for summary
judgment By order dated April 28 2008 this court ordered that the writ be
referred to the panel assigned to hear defendants appeal Accordingly we will
address the merits of both the appeal and the writ application in this opinion
DISCUSSION
Article 1915 B Certification
The motions for partial summary judgment at issue in the instant case only
involved requests for declaratory relief and did not address the Cathcarts
additional claim for a preliminary injunction A partial judgment or partial
summary judgment does not constitute a final appealable judgment La C C P art
1915 B 1 However the judgment may be certified as a final judgment after an
express determination that there is no just reason for delay La C C P art
1915 B 1
In RJ Messinger v Rosenblum 04 1664 La 3 2 05 894 So 2d 1113 the
Louisiana Supreme Court held that the required designation of finality or
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certification need not include nor be accompanied by explicit reasons for the
determination that there is no just reason for delay in order for an appeal to be
taken from a partial judgment under La C C P art 1915 B However the court
emphasized that the trial court ideally should provide such reasons and if it does
so the standard of review of its certification is whether it abused its discretion
R J Messinger 04 1664 at p 13 894 So 2d at 1122 In those cases where the trial
court does not provide explicit reasons either oral or written for its determination
that there is no just reason for delay the appellate court is required to conduct a de
novo determination of whether the designation was proper R J Messinger 04
1664 at pp 13 14 894 So 2d at 1122 In conducting this review we consider the
overriding inquiry of whether there is no just reason for delay as well as other
non exclusive factors that trial courts should use in making the determination of
whether certification is appropriatel R J Messinger 04 1464 at p 14 894 So 2d
at 1122 1123
The judgment from which the defendants appeal states that there is no just
reason for delay and designates the judgment as final for purposes of appeal
However the trial court did not give any explicit reasons either oral or written for
the designation From our de novo review of the record utilizing the non
exclusive factors set forth in R J Messinger 04 1664 at p 14 894 So 2d at 1122
we conclude that the designation was proper and that the jurisdiction of this court
has been properly invoked
I The non exclusive factors listed in RJ Messinger include
1 The relationship between the adjudicated and unadjudicated claims
2 The possibility that the need for review might or might not be mooted by future
developments in the trial court
3 The possibility that the reviewing court might be obligated to consider the same issue
a second time and
4 Miscellaneous factors such as delay economic and solvency considerations
shortening the time of trial frivolity of competing claims expense and the like
R J Messinger 04 1664 at p 14 894 So 2d at 1122
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Motion for Summary Jud2ment
A motion for summary judgment is a procedural device used to avoid a full
scale trial when there is no genuine issue of material fact Schwehm v Jones 03
0109 p 4 La App 1st Cir 2 23 04 872 So 2d 1140 1143 The motion for
summary judgment should be granted if the pleadings depositions answers to
interrogatories and admissions on file together with any affidavits show that
there is no genuine issue of material fact and that the mover is entitled to judgment
as a matter of law La C C P art 966 B Independent Fire Insurance Company
v Sunbeam Corporation 99 2181 p 7 La 2 29 00 755 So 2d 226 230 231
An appellate court reviews the district court s decision to grant or deny a motion
for summary judgment de novo using the same criteria that govern the trial court s
consideration of whether summary judgment is appropriate Lieux v Mitchell 06
0382 p 9 La App 1 st Cir 12 28 06 951 So 2d 307 314
Building restrictions or restrictive covenants as they are generally known
in the common law and occasionally termed in Louisiana are charges imposed by
the owner of an immovable in pursuance of a general plan governing building
standards specified uses and improvements La C C art 775 Cathcart v
Magruder 06 0986 p 11 La App 1st Cir 5 4 07 960 So 2d 1032 1037
Building restrictions are incorporeal immovables and real rights likened to predial
servitudes La C C art 777 Blessey v McHugh 94 0555 p 8 La App 1 st Cir
7 27 95 664 So 2d 115 119 As real rights building restrictions are not rights
that are personal to the vendor rather they inure to the benefit of all other property
owners under a general plan of development and are real rights running with the
land Blessey 94 0555 at p 8 664 So 2d at 119
In interpreting the restrictive covenant at issue we are mindful of the rule
that building restrictions are to be strictly construed with any doubt as to the
existence validity or extent of the building restriction resolved in favor of the
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unrestricted use of the immovable La C C art 783 Country Club of Louisiana
Property Owners Association Inc v Domier 96 0898 p 9 La App 1st Cir
214 97 691 So 2d 142 147 Apart from the rule of strict interpretation
documents establishing building restrictions are subject to interpretation and
enforcement as are contracts Country Club of Louisiana Property Owners
Association Inc 96 0898 at p 9 691 So 2d at 147 see also Hidden Hills
Community Inc v Rogers 03 1447 p 4 La App 3rd Cir 3 3104 869 So 2d
984 986 writ denied 04 1082 La 518 04 874 So 2d 158
Interpretation of a contract is a determination of the common intent of the
parties La C C art 2045 When the words of a contract are clear and explicit
and lead to no absurd consequences no further interpretation may be made in
search of the parties intent La C C art 2046 The words of a contract must be
given their generally prevailing meaning La C C art 2047 Words susceptible of
different meanings must be interpreted as having the meaning that best conforms to
the object of the contract La C C art 2048 Each provision in a contract must be
interpreted in light of the other provisions so that each is given the meaning
suggested by the contract as a whole La C C art 2050
However when the terms of a written contract are susceptible to more than
one interpretation or there is ambiguity as to its provisions or the intent of the
parties cannot be ascertained from the language employed parol evidence is
admissible to clarify the ambiguity and to show the intent of the parties
Diefenthal v Longue Vue Management Corporation 561 So 2d 44 51 La 1990
The document establishing the restrictive covenants at issue can be divided
into three main sections The title of the document refers to Restrictive
Covenants for MaKinley Cove and Adjacent Property Parcels Situated in
Headright 40 and Section 28 Township 1 South Range 10 East Washington
Parish Louisiana Emphasis added The first paragraph of the document
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identifies the two parties to the restrictive covenants Circle T and the Magees who
acknowledge that they are the sole owners of property located and to be located in
and adjacent to that certain lake known as MaKinley Cove more fully shown on
the attached map of John G Cummings and Associates dated April 9 1999
Emphasis added
Paragraph two which contains the restrictive language outlines the parties
purpose in entering into the document as to assist in the safe and reasonable use
of the land and lake and for the benefit of owners family and future owners of
parcels that may be adjacent to MaKinley Cove Emphasis added Additionally
the document states that the parties to the covenant are establishing restrictive
covenants and are encumbering the parcels owned by them by subjecting them to
the restrictive covenants The document then lists nine individual restrictions
Restrictions one through four and six through nine speak generally however
restriction number five refers to p Jarcels adjacent to the lake and the lake as
being designated for private use Emphasis added
The Cathcarts assert that the restrictive covenants apply to the entire
original 411 93 acre tract In support the Cathcarts rely on the title to the
document the map attached to the restrictive covenants and the language in the
document referring to the parcels owned by them However what we find
problematic in interpreting this document is the inconsistent use of adjacent to
and MaKinley Cove As stated above the covenant refers to MaKinley Cove in
the title and then describes the geographic area that encompasses the entire 411 93
acre tract However paragraph one specifies that MaKinley Cove is a lake
Additionally though the document refers to parcels owned by them the first
paragraph identifies those parcels as being located or to be located in or adjacent
to the lake Further despite the Cathcarts argument the attached map does not
resolve this inconsistency The map showing the entire 411 93 acre tract of land
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and large lake was attached to and filed with the restrictive covenants However
the reference in the document indicates that the map is attached to more fully show
property parcels in and adjacent to the lake not necessarily the entire 411 93 acres
Further though the jurisprudence of this state has long held that survey maps
attached to deeds become a part thereof and control in the event of a conflict with
the property description in the deed this rule has not been extended to apply to
2restnctIve covenants
The phrase adjacent to is also used throughout the document The phrase
IS used twice in unambiguously referring to property adjacent to the lake
However the other two times it is used in referring to property adjacent to
MaKinley Cove If MaKinley Cove refers to the 411 93 acres the use of
adjacent to in the second paragraph which outlines the purpose of the restrictive
covenant as being for the benefit of owners family and future owners of parcels
that may be adjacent to MaKinley Cove would have to be read beyond its
commonly understood meaning of next to or adjoining Emphasis added
Otherwise the parties to the covenant would have encumbered their property for
the benefit of property owners other than themselves i e those holding property
adjacent or next to their combined 411 93 acres
Accordingly for the foregoing reasons we find that the restrictive covenant
at issue is ambiguous and the intent of the parties as to whether the restrictive
covenant is to apply to the entire 411 93 acres or to just those portions adjacent to
the lake is a question of fact which is not appropriately decided on a motion for
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Additionally we do not find that this court s opinion in Cathcart v Magruder 06 0986 La
App 1st Cir 5 4 07 960 So 2d 1032 is determinative of this issue In that case this court
stated in dicta in a footnote that the record reflected MaKinley Cove was used interchangeablyto refer to the lake properties adjoining the lake and the entire 411 93 acre tract but that for
convenience it would use MaKinley Cove in the opinion to refer to the entire 411 93 acres
Cathcart 06 0986 at p 3 n l 960 So 2d at 1033 1034 n 1 This clearly falls short ofa legaldetermination ofthis issue and we find the Cathcarts argument on this issue to be without merit
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summary judgment Sanders v Ashland Oil Inc 96 1751 pp 6 7 La App 1st
Cir 6 20 97 696 So 2d 1031 1035
CONCLUSION
For the foregoing reasons we reverse the trial court s granting of summary
judgment in favor of the Cathcarts and we remand this matter to the trial court for
further proceedings consistent with this opinion Additionally we deny the
defendants writ application All costs of this appeal are to be borne by the
appellees Aaron and Betty Cathcart
REVERSED AND REMANDED WRIT DENIED
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO 2008 CA 1018
AARON R CATHCART AND BETTY LEBOEUF CATHCART
VERSUS
DAVID MORACE AND PAULA MORACE RONALD PATTEN AND
JOYCE PATTEN ELWOOD ALBERTS JR CYNTHIA ALBERTS JOHNMOARKPW AND PATRICIA MARKOW PATRICIA HOPPE KEITH
MORGAN AND THERESA MORGAN DEBRA BROOKS ROBINJOUBERT SALLY ANSEL FRANKIE ALLEN KENNETH BYRD JR
Irk GAIDRY J dissenting
n I respectfully dissent Although the term MaKinley Cove was used in
several different and seemingly inconsistent ways any ambiguity as to the property
burdened by the building restrictions is properly resolved through application of
the codal articles on interpretation of obligations In my view the interpretation of
the expressed intent of the building restrictions is thus ultimately a legal issue
rather than a factual issue and resolution of the dispute by summary judgment is
appropriate
Applying the appropriate codal principles I conclude that the restrictions
were intended to apply to all parcels then owned by Circle T and the Magees
within the MaKin ley Cove development which included the MaKinley Cove
lake or Lake MaKinley itself the property parcels immediately adjoining the
lake and all other successively contiguous parcels within the original 411 93 acre
tract See La C C arts 2048 2049 2050 and 2053 This interpretation best
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conforms to the overall nature of the restrictions the described character of the
property and the expressed benefits of use of the lake Finally even though the
attachment of the survey map or plat depicting the entire tract is not conclusive
on the issue of the entire tract being subject to the restrictions it is relevant and
corroborative in resolving any ambiguity Accordingly I would affirm the trial
court
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